Q&As

A document is labelled ‘privileged’, ‘confidential’ and/or ‘privileged and confidential’. Does this mean it is privileged?

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Published on LexisPSL on 23/02/2018

The following Dispute Resolution Q&A provides comprehensive and up to date legal information covering:

  • A document is labelled ‘privileged’, ‘confidential’ and/or ‘privileged and confidential’. Does this mean it is privileged?
  • General principles—privilege and confidentiality
  • What are the types of privilege?
  • Legal professional privilege
  • Other types of privilege

A document is labelled ‘privileged’, ‘confidential’ and/or ‘privileged and confidential’. Does this mean it is privileged?

General principles—privilege and confidentiality

One of the more challenging issues a practitioner faces during litigation, and in particular during the disclosure phase of proceedings, is seeking to protect a client’s confidential material and information from being inspected by the other parties and from being put before the court.

A key way to achieve such protection for documents relevant to a dispute is to assert that they are privileged. Once it has been established that a document is privileged, it confers a right to withhold that document from inspection.

For more general information on the meaning and consequences of a document being privileged, see Practice Note: Privilege—general principles.

It is important to note however, that labelling a document as ‘privileged’ does not determine its privileged status. Rather, for such special protection to apply, enabling a client to retain confidentiality and withhold inspection of a relevant document, the criteria for one of the various types of privilege must be specifically met (see below).

As a further general point, a document will need to be confidential (ie not have become publicly available, or available to the other side) in order for an assertion of privilege to be effective. However, whether or not a document has been labelled as ‘confidential’ will be equally inconclusive as regards its actual

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